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In a ruling dated 2 April 2015, the European Court of Human Rights (“ECHR”) stated that inspections and seizures carried out by investigators from the Department for Competition, Consumer Affairs and Fraud Prevention (“DGCCRF”) at the premises of two companies suspected of anti-competitive practices violated Article 6 paragraph 1 (right to fair trial) and Article 8 (right to respect for private and family life, for the home and for correspondence) of the European Convention on Human Rights (the “Convention”).

Background

A judge for liberties and detention (“JLD”) authorised the DGCCRF to carry out inspections and seizures at the premises of Vinci Construction (“Vinci”) and GTM Genie (“GTM”) in relation to possible illegal practices in the construction sector. The inspection took place on 23 October 2007, and officials seized documents, computer files and full email accounts of some employees.

The companies challenged the inspections, and alleged that seizures had been widespread and indiscriminate - concerning several thousand electronic documents many of which were not connected to the investigation. They also alleged that many of the documents were protected by legal privilege, and that no detailed inventory of the seized documents had been provided by the officials.

Rulings from National Courts

The companies lost their appeals before French Courts. The national courts ruled that the inspections and seizures had complied with French law and with the rights guaranteed by the Convention. In particular, the French Supreme Court held that respect for legal privilege did not prevent the authorities from seizing items and documents protected by such privilege.

ECHR’s ruling on the right to a fair hearing

Vinci and GTM brought their case to the ECHR. They argued that their rights to an effective trial were infringed because they couldn’t lodge an appeal against the decision authorising the inspections and seizures. Indeed, at the time, they could only appeal before the very same JLD who had authorised the dawn raids and then bring the case before the French Supreme Court. They also alleged that the widespread and indiscriminate nature of the seizures carried out interfered with their rights to respect for home, private life and correspondence under Article 8 of the Convention.

The ECHR ruled that there had been an infringement of the companies’ right to a fair hearing, as French law did not provide for an appeal procedure on the merits at the time of the dawn raids. The ECHR had already held in a number of other cases that the procedure provided for by the Commercial Code at that time did not allow for effective judicial review to challenge the lawfulness and merits of a decision (CEDH 21 December 2010 Sté Canal Plus et autres c/ France and Compagnie des Gaz de Pétrole Primagaz c/ France).

ECHR’s ruling on massive document seizures and actual safeguards

Regarding the search and seizure of electronic data, the ECHR ruled that it amounted to an interference with the rights as protected by Article 8 of the Convention. However, the ECHR also noted that these interferences had been implemented in accordance with French law, and stated that these inspections had the purpose of preventing anticompetitive conduct, and were not disproportionate as such.

Furthermore, the ECHR considered that the seizures had not been widespread and indiscriminate since French officials tried to restrict their searches to the relevant individuals working in the field of activity concerned.

Nevertheless, the ECHR considered that the companies were not able to discuss the appropriateness of the documents being seized, or inspect their content either during the inspection or before the JLD (who authorised the dawn raid). Indeed, although the companies raised this point with the JLD, the JLD only reviewed whether or not the dawn raid investigation was undertaken in compliance with French law and did not conduct a tangible examination of the documents the companies claimed to be legally privileged or unrelated to the investigation.

According to the ECHR’s ruling, the JLD should have proceeded to a detailed examination and a specific review of proportionality, and subsequently required the restitution of the documents.

Conclusion

Based on the above, the ECHR concluded that the dawn raids were performed in breach of Article 8 of the Convention, and ordered France to pay €15,000 in respect of costs and expenses for procedure without granting damages to Vinci or GTM.

This ruling should have significant consequences on dawn raids performed by the French competition authorities (DGCCRF and/or the Autorité de la concurrence). Whereas their previous practice had been to copy and review full e-mail boxes including privileged documents in many cases, the French competition authorities should now use safeguards to exclude privileged documents and documents unrelated to the investigation.

As under EU law, in presence of a big data volume, French authorities can use the “sealed envelope” procedure which allows investigating authorities to tag and export disputed documents to be reviewed at a later stage under the control of the companies’ counsel and a Court if need be.

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